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Kays v. Colvin

United States District Court, W.D. Washington, Seattle

November 13, 2014

SCOTT W. KAYS, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.


BRIAN A. TSUCHIDA, Magistrate Judge.

Scott W. Kays appeals the denial of his Disability Insurance Benefits application, seeking remand for further administrative proceedings. He contends the ALJ erred by (1) misevaluating the opinion of non-examining State agency doctor Diane Rubin, M.D., and (2) making a step four finding that was not supported by substantial evidence. As discussed below, the Court recommends the case be REVERSED and REMANDED for further administrative proceedings.


Following a hearing, the ALJ issued a final decision finding that from Mr. Kays's alleged disability onset date of December 31, 2008, through his date last insured of September 30, 3010, he was not disabled. Tr. 19-35. Utilizing the five-step disability evaluation process, the ALJ found that cirrhosis of the liver; hepatitis C; cardiac disorder; right knee degenerative joint disease; cervical, thoracic, and lumbar degenerative disc disease; and gastrointestinal disorders were severe impairments that did not meet or equal the requirements of a listed impairment. Tr. 22; see 20 C.F.R. § 404.1520; 20 C.F.R. Pt. 404, Subpt. P, App. 1. The ALJ also found that Mr. Kays had the residual functional capacity ("RFC") to perform less than the full range of light work. Tr. 25-26. Based on the RFC and the testimony of a vocational expert ("VE"), the ALJ found Mr. Kays could perform past relevant work as a service writer/auto tire salesman. Tr. 31-32. Alternatively, the ALJ found Mr. Kays could perform jobs that exist in significant numbers in the national economy. Tr. 32. Therefore, the ALJ found Mr. Kays not disabled. Tr. 33.


A. The ALJ erred in evaluating Dr. Rubin's opinion

In May 2011, Dr. Rubin opined that from June 2009 through September 2010, Mr. Kays had no physical limitations but needed to avoid concentrated exposure to vibration, fumes, odors, dusts, gases, poor ventilation, and hazards. Tr. 122-23. She also opined that he needed "close access to [a] bathroom due to [irritable bowel syndrome]." Tr. 123.

The ALJ gave Dr. Rubin's opinion "some weight, " explaining:

Dr. Rubin assessed the claimant in April 2011 and concluded that he had no physical limitations. Dr. Rubin apparently did not consider the claimant's degenerative disc disease and knee problems. As discussed above, the medical evidence shows that the claimant's impairments cause functional restrictions that limit him to less than the full range of light work.

Tr. 31.

Mr. Kays argues the ALJ erred because he failed to evaluate Dr. Rubin's opinion that Mr. Kays needed close access to a bathroom, and the RFC does not include any such limitations. The Court agrees. The ALJ did not mention Dr. Rubin's opinion regarding bathroom access or provide any reason why that opinion was not incorporated into the RFC. This was error. See SSR 96-8p ("If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted."). And because the hypothetical presented to the VE did not include a need for close access to a bathroom, the ALJ's error was harmful. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (error is harmful where it affects the ultimate nondisability determination); Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993) (a VE's testimony based on an incomplete hypothetical lacks evidentiary value) (citing DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991)).

The Commissioner nevertheless argues that the ALJ properly rejected Dr. Rubin's opinion in favor of the opinion of Arthur Lorber, M.D., the medical expert who testified at the hearing. See Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998) ("The Commissioner may reject the opinion of a non-examining physician by reference to specific evidence in the medical record."). The Commissioner also maintains that the ALJ did not need to discuss every aspect of Dr. Rubin's opinion and properly considered it by explaining the weight assigned. See 20 C.F.R. § 404.1527(e) ("Unless a treating source's opinion is given controlling weight, the administrative law judge must explain in the decision the weight given to the opinions of a State agency medical or psychological consultant....").

The Court is not persuaded. Although an ALJ's decision need not be a model of clarity, the Court must be able to reasonably discern the ALJ's path. See Molina, 674 F.3d at 1121. The ALJ omitted any discussion of Dr. Rubin's bathroom access opinion, and thus there is no path between this opinion and Dr. Lorber's opinion. The ALJ's reference to Dr. Lorber's contrary opinion regarding limitations caused by Mr. Kays's degenerative disc disease and knee problems is insufficient to reject Dr. Rubin's opinion regarding bathroom access, particularly because the ALJ credited aspects of Dr. Rubin's opinion by giving it "some weight." Indeed, the Commissioner's suggested interpretation of the ALJ's decision-that the ALJ intended to reject Dr. Rubin's bathroom access opinion by referring to Dr. Lorber's opinion regarding Mr. Kays's physical limitations-is no more probable than finding the ALJ intended to give weight to Dr. Rubin's bathroom access opinion but accidentally omitted it from the RFC. Given this ambiguity, remand is necessary for the ALJ to clarify his intent.

B. The ALJ's step four finding

Mr. Kays argues the ALJ erred at step four in finding he could perform his past relevant work. As this matter is being remanded for further consideration of Dr. Rubin's opinion, which may result in a different RFC finding and therefore new findings at steps four and five, it would be premature to address this argument now.


For the foregoing reasons, the Court recommends the Commissioner's decision be REVERSED and the case be REMANDED for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). On remand, the ALJ should reevaluate Dr. Rubin's opinion regarding bathroom access, specifically consider the credibility of Mr. Kays's statements concerning his need to access a bathroom[1], and, as necessary, revise the RFC and proceed with steps four and five of the sequential evaluation process.

A proposed order accompanies this Report and Recommendation. Objections, if any, to this Report and Recommendation must be filed and served no later than November 28, 2014. If no objections are filed, the matter will be ready for the Court's consideration on November 28, 2014. If objections are filed, any response is due within 14 days after being served with the objections. A party filing an objection must note the matter for the Court's consideration 14 days from the date the objection is filed and served. Objections and responses shall not exceed twelve pages. The failure to timely object may affect the right to appeal.

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